Only in movies do witnesses appear on command, at the beck and call of casting directors. In the hurly-burly world of real courts, you are sometimes lucky to make your witnesses appear at all. What terrifies is that a client’s liberty can depend on mere chance.
Brittany Paz, Jim Nugent and I tried a murder case in New Haven this month. Weeks before trial, we gave a marshal subpoenas for about 10 witnesses. All but one were folks with checkered pasts. We did not suspect that one of them would want to appear.
Days before evidence was to begin, the marshal told us not one of the witnesses could be found. We then did what we should have done in the first instance: we hired a private investigator with simple instructions: sic ‘em. In a couple of days all but one was served.
At issue in the trial was whether our client shot and killed another man in retaliation for a stabbing earlier in the evening. The location of the shooting was a local drug mart, with folks milling about in the wee hours of an October morning doing things they’d probably rather not discuss.
The state produced two witnesses who said the client confessed to the shooting. These witnesses had enough baggage to fill a freight train. We were on the attack, but we needed at least one witness of our own, a woman who was nearby as the shooting took place and heard a man say: “Yo, Shane, why you did that?” We intended to offer this as an exception to the bar against hearsay, an excited utterance, to be exact, in support of our claim of that someone else was the shooter, third-party culpability, in the fusty language of the law.
We were provided a return of the subpoena, confirming that the woman had been served. She called our office to discuss her testimony. We were ready.
But when the court called for lights, camera and action, the witness was a no show. She had stopped answering our calls. We brought the investigator who served the subpoena into court to testify, and asked for a capias warrant, an order that she be taken into custody and produced to testify.
It took hours to find a marshal willing to do the job. One after another said they would not, or could not, do the job. It was late afternoon and would require too much time, some said. Others gave no reason. We asked the prosecutor to use his investigator, and he declined. We made inquiries of the court to see if it could assist. The answer was no.
Somehow, I suspect that if the state’s attorney needed a capias served it would have taken no more than a phone call to get it done. But private counsel has no police force to back it. All we have are state marshals who are free to turn down the work. There’s something wrong with that. A judge had made a finding that the witness was necessary, and had signed off on a warrant.
In the end, we found a marshal willing to serve our papers and take the young woman into custody. She testified, reluctantly, and with great tears, claiming not to recall what she had said. We were able to offer a prior statement of hers substantively, and the jury, just barely, heard the testimony we built our trial strategy around their hearing.
Little more than two hours after the closing arguments, the foreman announced a verdict of not guilty. I’ll never know whether the testimony of the reluctant witness turned the case. Perhaps we had it beat before she took the stand.
But I shouldn’t have to wonder. Better provisions need to be made for the service of capias warrants for defense counsel. In this case, the ends of justice were nearly frustrated for the simple reason that almost every marshal we called did not want to do their job.•